Day on Torts

July 28, 2006

New Intimidation Tactic

A website has been launched that will help doctors and the public identify patients and lawyers who filed medical malpractice cases.

Here is a nice summary: "The LitiPages.com Attorney Database allows victims of medical malpractice to screen prospective attorneys and, if they so choose, avoid lawyers who consistently fail to obtain jury verdicts for their clients. The LitiPages.com Patient Database allows physicians to identify individuals who have demonstrated unrealistic expectations of the health care system through their participation in a medical malpractice lawsuit whose merit was not supported by a jury verdict. Finally, LitiPages.com also provides informational resources to patients who have been the victims of legal malpractice. "

Why is the site necessary? "A physician may feel that a patient who has filed a medical malpractice suit and lost a trial before a jury of their peers harbours unrealistic expectations of their physician and probably of the health care system at large. In the same way, a physician may feel that a patient who files a medical malpractice case only to later withdraw it (or have it dismissed) likewise must have held unrealistic expectations of their physician. The patient who files "shotgun" lawsuits against every doctor listed in their chart when only one (if any) of those doctors was negligent may be perceived by a physician to be out of touch with medical reality. Accordingly, a responsible physician who feels that a patient’s behaviour demonstrates unrealistic medical expectations has both a right (and arguably a responsibility) to refuse elective care to that patient. The attorneys who counseled such patients and filed their cases must subscribe to similarly unrealistic expectations of physicians and of the health care system in general. Appropriately, a physician who feels that an attorney’s behaviour demonstrates unrealistic medical expectations has the right to refuse elective care to such an individual."

July 27, 2006

A Lawyer’s Obligation to Pay Health Care Providers

by The Law Offices of John Day, P.C.

You resolve a case by settlement or judgment and the check is sent to your office. The check has been deposited in your trust account, has cleared the bank, and the proceeds are now ready for distribution. There are several health care providers who gave care to your client concerning the injuries she received in the wreck. Can you (as a lawyer) be held liable if you don’t pay their bills out of the settlement proceeds?

The Wisconsin Supreme Court recently answered that question, with a slight twist on the facts. In a 20-page opinion brought by a chiropractor against an attorney, the WSC held that "We determine that Dr. Yorgan may not hold Attorney Durkin liable for payment because Durkin did not sign the agreement or otherwise agree to be liable. Additionally, we determine that imposing liability on Durkin is not dictated by public policy. Finally, we determine that Yorgan is not entitled to an equitable lien enforceable against Attorney Durkin." (Paragraph 2).

Note the additional facts I left out of the hypothetical in the first paragraph: the attorney did not sign the agreement between the chiropractor and the patient providing that the patient was to direct her attorney to pay the chiropractor out of the settlement proceeds and purporting to give a lien against the recovery. However, the attorney received a copy of the document at the time he got medical records from the chiropractor. Moreover, the attorney had a conversation with the chiropractor after the claim was settled about reducing the bill.

July 27, 2006

Tennessee Ethics Opinion on Payments to Health Care Providers

by The Law Offices of John Day, P.C.

My friend Keith Williams posted a comment that asked about the Tennessee ethics opinion that discusses how to handle the issue raised in the proceeding post – how should we handle liens asserted by health care providers when we have not signed a contract obligating us (as lawyers) to recognize the lien.

There is a Tennessee Ethics Opinion on point. Here it is:

FORMAL ETHICS OPINION 87-F-109

July 26, 2006

Liability for Improper Gun Storage

by The Law Offices of John Day, P.C.

The Massachusetts Supreme Judicial Court has ruled that a homeowner "owed a duty of reasonable care to the plaintiff relative to the storage of firearms kept in her home, to which a mentally unstable and violent person was given unsupervised access." Accordindly, the Court reversed a grant of summary judgment in favor of the homeowner and remanded the case for trial.

The opinion has a fascinating discussion about the law of duty.

The Court said that "there is a significant social benefit to be realized by recognizing a duty of the person in control of the premises to exercise due care with regard to the storage of guns on the premises, particularly with respect to those who have been granted regular access to it." The Court also stated that " [a]t the very least, Kask should have foreseen that Jason [the shooter]– whom she knew had a history of violence, had recent problems with the law, and had been under psychiatric observation — might use his unsupervised access to the house to take a weapon from the basement gun cabinet, and subsequently use this weapon in the commission of a violent crime."

July 25, 2006

New Federal Courthouse to be Named for Senator Frist?

by The Law Offices of John Day, P.C.

The Tennessean reports that the new federal courthouse in Nashville will be named for Senator Frist.

The same Senator Frist who has repeated tried to keep medical malpractice victims from being able to access to the civil justice system.

The same Senator Frist who, after diagnosising Terry Schaivo via videotape, gave the federal courts jurisdiction over a lawsuit brought by her parents (the so-called Palm Sunday Compromise).

July 24, 2006

Loss of Consortium Claimed for Same-Sex Couple

by The Law Offices of John Day, P.C.

You knew it would happen sooner or later. A same-sex couple in Connecticut has filed a loss of consortium claim in a medical malpractice lawsuit.

Connecticut has a civil union statute that gives same-sex couples the same rights as heterosexual married couples. Given the state of the law in Tennessee it is my opinion that such a claim could not be filed here.

Victory in Duragesic Pain Patch Case

by The Law Offices of John Day, P.C.

A jury in Texas has returned a verdict for the plaintiff in the first Duragesic pain patch case to go to trial.

Plaintiffs alleged that Michaelynn Thompson "died because the Duragesic patch released too much fentanyl, a strong pain reliever, into her body."

This article reports that there are 100 similar suits pending nationwide.

July 22, 2006

Early Intervention Prevents Lawsuits

by The Law Offices of John Day, P.C.

It just makes sense for hospitals and doctors to try to resolve problems with patients before lawyers get involved, and it looks like they are starting to do it.

This article from www.law.com explains how facilities are starting to aggressively deal with potential claims and avoid litigation.

Look at what happened to claims at the University of Michigan Hospital when such a program was adopted: "In August 2001, there were 262 total claims, ranging from presuit notices to active litigation; in August 2002, there were 220 total claims; 193 claims in August 2003; 155 claims in August 2004; 114 claims in August 2005; and since that time, the total number of claims has fallen to fewer than 100…." This occurred despite an increase in clinical activity.

July 21, 2006

Do You Ask About Personal Notes?

by The Law Offices of John Day, P.C.

Here is a great case out of Illinois that reminds us of the importance of asking each fact witness about whether they have made any personal notes concerning the event at issue.

In Cangelosi v. Capasso, No. 03–L–392, (Ill. Ct. App, 2nd Dis. June 30, 2006), plaintiff asked that a nurse who made personal notes about treatment made within a day of the event at issue be compelled to produce them in litigation. She resisted that effort, saying that she made the notes in contemplation of litigation. At her deposition, the nurse "testified that her notes memorialized factual things that she saw, factual things that she did, and factual things that she saw other people do. The notes include things that the doctors may have said during her shift regarding plaintiff’s care. After completing her notes, defendant nurse] placed them in a folder in her kitchen cabinet. "

The court ordered production of the notes, saying that they were not protected by the attorney – client privilege because they were not a communication to an attorney for purposes of securing legal advice. Nor were they protected by the work product doctrine, because " they do not ‘contain or disclose the theories, mental impressions, or litigation plans of the party’s attorney.’"

July 20, 2006

New Emotional Distress Decision

by The Law Offices of John Day, P.C.

The Tennessee Supreme Court has ruled that the three-year statute of limitation applies for emotional distess claims arising out of injury to property "inspired by fraud, malice or like motives."

The Trial Court and Court of Appeals affirmed dismissal of the claim for emotional injuries because the lawsuit was not filed within one year. The TSC reversed on this issue, holding that "[t]he gravamen of the Whaleys’ complaint is that the defendants’ actions injured their property, and the damages they sought for emotional distress were “damages aris[ing] wholly as a result of the injury to plaintiffs’ property and not as a result of anything personally done to them.” In other words, the Whaleys’ “claim” for damages for emotional distress was merely an element of their overall claim for damages for the injury to their property and not a stand-alone cause of action. Consequently, the three-year property tort statute of limitations applies, and the intermediate court erred in holding that the one-year personal injury statute of limitations barred the Whaleys’ claim for damages for emotional distress."

Turning to another issue, the Court also held that "the Defendants’ violation of the Shelby County subdivision regulation does not warrant the application of the doctrine of negligence per se." The Court agreed with the Court of Appeals on this issue, and adopted this language from the opinion of the lower appellate court: "these subdivision regulations were enacted largely for reasons related to quality of life, among them, assuring adequate public facilities for residents, minimizing pollution, providing for orderly layout and use of land, protecting the value of land, preventing overcrowding, and assuring effective traffic circulation. The harm alleged by the Whaleys is not a harm the regulations were designed to prevent, but rather, it is an accidental consequence of a [regulation] enacted to prevent other harms to the community and its residents that could be caused by the unregulated subdivision of land."